The law relating to compensation

‘In approaching the question whether the law should, as a matter of policy, define the criterion of liability in negligence for causing psychiatric illness by reference to some test or other than that of reasonable foreseeability it is well to remember that we are concerned only with the question of liability of a defendant who is, ex hypothesi, guilty of fault in causing the death, injury or danger which has in turn triggered the psychiatric illness.

A policy which is to be relied on to narrow the scope of the negligent tortfeasor’s duty must be justified by cogent and readily intelligible considerations, and must be capable of defining the appropriate limits of liability by reference to factors which are not arbitrary’. McLoughlin v O’Brian [1983] AC 410, per Lord Bridge, at 441. Discuss the above statement of Lord Bridge in the context of subsequent developments in the law relating to compensation for psychiatric injury, caused by the negligent actions of a tortfeasor.

Is existing law in this area satisfactory? If not, how might it be improved? Lord Bridge’s statement in McLoughlin can be broken down into two parts. The first part considers the liability in this area of law; the only question should be ‘who is guilty of causing the psychiatric injury’. The second part considers narrowing the floodgate by using policy consideration. His Lordship raised two requirements, which a policy must be justified on the basis of cogent and readily intelligible consideration and secondly it should not rely on arbitrary factors.

However, the current law can hardly fulfil the second part since this area is emotionally charged, raising serious moral questions for the administration of justice, as many claimants fail owing to the type of victim that they are categorised as. The different judicial approaches to different categories of victim will be assessed with the various control mechanisms evaluated in order to assess their merits. This essay sets out to critically examine the current law of psychiatric injury. Then, it will turn to discuss and analyse the unsatisfactory of the Alcock mechanisms, which designed to narrow the number of claims.

Afterwards, it shall aim to find out how the problems in Alcock extend to some special categories of claimants such as rescuers and bystanders. In concluding the purpose will be to expand on what can be done to resolve the matter and whether it is worth alleviating. The present English law on liability for psychiatric illness is effectively summarized in two decisions of the House of Lords McLoughlin v O'Brian[1] and Alcock v Chief Constable of the South Yorkshire Police[2]. To be eligible for a claim, the claimants must suffer a medically recognised psychiatric injury.

[3] In addition, in the light of Page v Smith, the plaintiffs will be categorised as either primary or secondary victims. [4] Although the Law Commission has called the distinction ‘more of a hindrance that a help’[5], however, as Lord Bridge’s statement noted, there is a judicial desire to prevent a flood of litigation by permitting a wide class of individuals to make a claim. [6] Primary victims must be exposed to a reasonable foreseeable risk of physical injury, disregard whether psychiatric injury was foreseeable. [7] This treatment for primary victims is straight forward, since they have been placed in bodily risk.

[8] For an individual who cannot satisfy this will be deemed a secondary victim and must be of ‘customary phlegm’[9], and then overcome the control mechanisms from Alcock to succeed. This is where policy considerations steps in; it is designed to avoid imposing disproportionate liability. However, the Alcock mechanisms has acted as an arbitrary barrier to bringing a claim under the guise of whether the injury was a foreseeable result of the defendant’s act and put such victims in a far less favourable position than primary victims. [10] This essay will discuss the mechanism one at a time.

The first mechanism is a need for a ‘close tie of love and affection’ with the primary victim of the incident. In Alcock, it was held that there is a rebuttable presumption of such a tie between a parent and child, and spouses. [11] The defendant should reasonably foresee injuries to these groups but not necessarily to others such as siblings who would have to show evidence of their closeness. However, commenters namely Weir, believes that such requirement causes ‘embarrassment’ to claimants who face cross-examination on their closeness therefore creates contradiction by investigators which might lead to unjust decisions.

[12] This exclusion would eventually create uncertainty and is more likely to cause deterioration in a claimant’s condition. However, in contrast to such comment, the Law Commission stated that policy considerations dictated limits to recovery by secondary victims, and claimed that this requirement operates as an appropriate control mechanism[13]. Under the Commission’s proposal, the rebuttable common law presumption governing spouses, parents and children would be replaced with conclusive statutory presumptions in respect of a wider class of relationships.

[14] Interestingly, the Commission, following the two brothers case in Alcock, refused to put ‘siblings’ into the recommended ‘list’. Does it mean there is no close tie of love and affection assumed to exist between them? In fact, it does not require great imagination or great understanding of psychiatry to contemplate that, as a member of a family, might succumb to nervous shock in the event of a serious accident. [15] The second requirement is that the claimant was present at the incident or its immediate aftermath.

The judgement in McLoughlin v O’Brian[16] extended the concept of ‘aftermath’ forwards and spatially away form the scene, thus the law covers seeing the person in the hospital two hours later before medical sergeants had properly attended them. [17] This alleviates some strictness by not insisting on the claimant being at the scene but it is another arbitrary line drawn by the courts. [18] On the one hand, Mrs McLoughlin arrived two hours later while the bodies were covered by mud and blood, yet on the other hand, in Alcock, relatives who arrived eight hours later, having travelled further were denied a claim.

[19] Imagine a case where a mother affected in precisely the same way as Mrs McLoughlin, but too far away to reach the hospital quickly would likewise fail. [20] Mainly because it failed the proximity test on the ground that the identification could not be described as part of the "immediate aftermath. " The moment that “immediate aftermath” covey to “aftermath” is artificial and vague. As Lord Jauncey in his judgement, emphasised that to attempt a comprehensive definition of the "immediate aftermath" would be a fruitless exercise.

[21] Therefore, the means of establishing liability for psychiatric illness should not depend upon a race between the victim and the ambulance. [22] The third mechanism is that the psychiatric injury was a result of directly perceiving the incident or aftermath with one’s own “unaided senses”. [23] It also requires that the injury result from the “sudden shock” of witnessing the event and not from some gradual exposure. This can produce problematic results. The word "shock" has lent itself to an idiosyncratic view that the plaintiff's illness must be caused by an instant event, which in colloquial terms can be regarded as "shocking.

" [24] Teff, however, believes that it is the closeness of the actual bond between plaintiff and primary victim which is the key indicator of whether psychiatric illness will ensue. [25] It is therefore artificial to focus on precisely how the shock is experienced in isolation from the actual relationship. Although the Law Commission points out in its review of the medical literature that a traumatic, "shocking" event is a more likely trigger for the occurrence psychiatric illness, [26] this in itself does not justify excluding psychiatric illness caused by less "shocking" events.

Another problem arise is the means of notifying the “shock”. No claim will stand in the current law if the plaintiff is being informed by a third party causes the injury. [27] The basis, according to Lord Keith in Alcock appears to be a lack of proximity and because English law has never allowed for recovery in this way. [28] However, if the claimant arrives at the mortuary in sufficient time, they will have a claim. This is hard to justify; if it is reasonable foreseeable that a parent would suffer injury as a result of witnessing an incident, surely it is a foreseeable occurrence from being informed of the incident.

It is clear that the Alcock mechanism is vague, unjust and unsatisfactory. Therefore, it does not fulfill Lord Bridge’s guideline for what policy consideration should be taken into account. This problems does not simple focus on the mechanisms, hence, we will then explore how the problem affect to the possibility of a claim by special category victims. [29] This essay will mainly pay attention to two controversial aspects, namely rescuers and bystanders.